Jon Lawrence, spokesperson for Electronic Frontiers Australia told news.com.au that ASIC should be required to provide a judicial warrant before attempting to block a single website. The organisation said it planned to contact Senator Conroy and insist he "conduct a full-fledged investigation into the second stuff-up in as many months".

He said the public should be informed of the decision before any move is made to block a website.

"We're very concerned about ASIC's use of the Telecommunications Act to block websites," he told news.com.au. "It's simply not very effective - they've admitted that themselves. Clearly there is a lack of technical understanding about how to do this without creating collateral damage, as we've already seen."

Lawrence also said there was nothing to stop state or local governments from pressuring ISPs to block websites.

"Clearly there needs to be tighter constraints," he said.

More than 1200 websites were blocked last month - including one belonging to a Melbourne university - after ASIC tried to block a single website.

At the time ASIC said that it was the first time something like that had happened and said it was taking steps to ensure it wasn't happening again.

But in a Senate estimates hearing on Tuesday, ASIC admitted to a second blunder, claiming that only 1000 "legitimate" websites were blocked because the other 249,000 were "innocuous" and hosted "no substantive content" because the domain names that were up for sale.

ASIC asked ISPs to block financially fraudulent websites by IP address (the number assigned to servers that host a range of different websites) instead of by domain names (such as clicktomakeitbig.com.au).

As a result thousands of websites were blocked.

Source: News Limited

ASIC said it was investigating how it could ensure that only specific websites were blocked and how it could alert the public to that fact.

Vice chair of the Australian Privacy Foundation, David Vaile, told news.com.au he wanted to know which part of the Telecommunications Act ASIC used to justify the blocking of websites.

ASIC said it used section 313, which is split into two parts, the first part of the act requires ISPs to "do their best" to prevent their services from being used in the commission of an offence against any state or territory law.

The second part requires ISPs to assist "officers or law enforcement authorities" in preventing and safeguarding national security and public revenue.

"Section one doesn't say anything about an order, or who judges what is best," Mr Vaile said. "It doesn't have a test of reasonableness or necessity. It doesn't specify that it is to help particular law enforcement entities. In fact technically anyone could try to use the act to block a website. It just says you've got to do your best."

Vaile said that law enforcement and government departments have been deliberately "blurring the two sections together, treating it as this big blob."

The Telecommunications Act also allowed for unregulated and widespread wire-tapping, data retention, communications storage and interception.

ASIC is also immune from prosecution for the harm they have caused.

"If there's an instruction or request from the police or a government department that accidentally caused 250,000 websites to be blocked, then none of those people can sue," Mr Vaile said. "Even if it turns out to be a mistake."

"If it was a good-faith effort, it means they're protected so if your business is stuffed or your privacy or security or right to free speech has been violated there is nowhere to turn."

ASIC told news.com.au that it used section 313, subsection 3 of the Australian Telecommunications Act to block websites.

Sub-section 3 does not actually mention anything about the blocking of websites but instead says carrier services must give officers and authorities of the Commonwealth and states and territories "such help as is reasonably necessary" to enforce criminal law and penalties, protect public revenue and safeguard national security.

"ASIC uses various legal powers and techniques to protect Australian investors from becoming the victims of fraudulent activities including cold calling and the use of fraudulent websites," the spokesperson said.

"This includes requesting telecommunications carriers that access to a specified IP address of a fraudulent website be blocked. Section 313(3) Telecommunications Act (Cth) allows us to make these requests".

"ASIC is working to shut down scams and educate potential victims".

The spokesperson said ASIC "had nothing further to add".

Senatory Conroy told news.com.au that he has directed his department to work with other enforcement agencies to ensure that requests for assistance under section 313 are appropriate and targeted.

"The Department will also provide advice on ways to improve transparency and reporting of the use of this power," he said.

If your website has been blocked by ASIC, please get in touch: claire.porter@news.com.au.

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